Nyali residents fail to halt building of flats

Justice Anyara Emukule. FILE PHOTO | SULEIMAN MBATIAH |

What you need to know:

  • Judge reverses order stopping construction over failure to disclose another case.
  • Developer applied to have directive set aside.

Residents of the upmarket Nyali Estate have suffered a setback after a court ruled that construction can continue of apartments they had objected to.

Justice Anyara Emukule withdrew the directive he had granted New Nyali Residents Association officials who are opposed to the construction of high-rise buildings on two plots within the estate.

The residents had argued that the there was no public participation in the change of user.

“At no stage should the court embarrass itself by issuing contradictory orders from two parallel processes,” said the judge.

Justice Emukule said he had informed the lawyers that he issued the conservatory orders on the sole grounds of an alleged illegality. He added that the existence of another suit between the same parties had not been disclosed to him either in the application or in oral arguments.

The ruling by the court was after a developer of one of the plots, Mr Fuad Mohamed, successfully applied to have the orders set aside.

His lawyer, Mr Gikandi Ngibuini, said the petitioners went to court but did not inform it about the existence of a similar case before another court.

“It is the duty of the ex parte applicant to make full disclosure of material that has a bearing on a case,” said Mr Ngibuini.

He added that had the court been made aware of the existence of a similar suit, it was likely that it would not have granted the orders without looking at it.

Their lawyer, Mr William Wameyo, argued that failure to extend the orders would be allowing the other party to benefit from its own mischief.

The officials — Mr Said Tahir, Mr Steven Ogwapit and Mr Hubert Seifert — want Mr Mohamed and Hydro Luxurious Apartment Ltd restrained from carrying out developments on two parcels of land within Nyali Estate.

“The petitioners are mandated by the members and the association’s constitution to inquire into all circumstances involving the issuance of licences and approvals for developments within New Nyali,” they say in their application.